Fortner v. State

350 Ga.App. 226

828 S.E.2d 434

FORTNER

v.The STATE.

A19A0622

Court of Appeals of Georgia.

May 23, 2019

Andrea Conarro, Theodore Grana Cassert, for Appellant.

William Jeffrey Langley, Francis John Moran III, for Appellee.

Markle, Judge.

Ronald Fortner was convicted of 18 counts of violation of oath by a public officer ( OCGA § 16-10-1 ), and 11 counts of theft by deception ( OCGA § 16-8-3 ).¹ He appeals from the denial of his motion for new trial, as amended, arguing that (1) there was a fatal variance between the indictment and the evidence at trial, and thus he was entitled to a directed verdict of acquittal; (2) the trial court erred in admitting into evidence an exhibit that was not produced during discovery; and (3) the trial court improperly barred defense counsel from arguing that certain language in the indictment was a material allegation the State was required to prove. After a thorough review of the record, and for the reasons discussed below, we affirm.

Viewing the evidence in the light most favorable to the verdict, Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the record shows that Ronald Fortner was elected as the Lumpkin County coroner in 2013. Lumpkin County allows coroners to receive an annual salary in addition to charging a fee for death investigations.² Upon his swearing in, Fortner made the following acknowledgment in his oath of office: "I will not, under any pretense, take, accept, or enjoy any fee or reward pertaining to my office other than such as are allowed by law."

Soon after Fortner was elected coroner, he heard complaints of poor care at the Gold City Convalescent Center ("Gold City") and decided he would investigate deaths occurring there. He met with the nursing home administrator and instructed him that the nursing home staff was now required to contact the coroner whenever there was a death in the facility. Over the next two years, Fortner submitted numerous invoices seeking reimbursement for investigations he allegedly conducted.

In 2015, the Georgia Bureau of Investigations ("GBI") began investigating Fortner at the request of the county sheriff’s office. As part of the investigation, a GBI agent interviewed Fortner on two occasions.³ In these interviews, Fortner repeatedly stated that he was investigating possible abuse at Gold City, and that he had informed the county commissioners of his investigations. He insisted that he had the right to investigate any death in the county, and he believed he properly investigated the deaths at Gold City. However, none of the investigation reports submitted for reimbursement show that Fortner actually conducted any investigation into patient deaths, and Gold City nursing staff confirmed that Fortner did not do any such investigations.

Ultimately, Fortner was indicted on 18 counts of violation of oath by a public officer and 11 counts of theft by deception for obtaining reimbursement for "pronouncing the death of" 18 different patients when he was not entitled to such reimbursement. At trial, the State proffered copies of the death investigation forms Fortner submitted for each patient showing that Fortner completed only the personal information with no indication of any investigative steps or conclusions. Additionally, the GBI agent, several other physicians, and Gold City staff members testified that Fortner did not come to the facility to conduct an investigation following any patient’s death, and the investigation forms he submitted did not include information regarding how the deaths occurred. By way of comparison, the State proffered an unrelated investigation form of an accidental drowning that Fortner submitted in which he noted the circumstances of the death and the various steps taken as part of his investigation.

Fortner’s defense at trial was that, contrary to the indictment, he had not billed the county for "pronouncing the death of" any patient, but instead had billed for conducting investigations into the deaths of these patients. At the close of the State’s case-in-chief, Fortner moved for a directed verdict, arguing that the State failed to prove a material allegation in the indictment. According to Fortner, the indictment charged him with submitting reimbursements for pronouncing a death, but there was no evidence he had done so. Instead, he had submitted reimbursement for conducting investigations. The trial court ultimately denied the motion, finding the language in the indictment that Fortner "pronounced death" was not a material allegation.

The jury convicted Fortner of all counts for violating his oath of office and theft by deception. Thereafter, Fortner filed a motion for new trial, as amended, arguing that (1) the evidence was insufficient to show that he pronounced the death of any patient, and thus he was entitled to a directed verdict of acquittal; (2) the trial court erred in allowing into evidence exhibit 38, which was a death certificate that was not produced during discovery; and (3) the trial court improperly limited his closing argument to prevent him from arguing that "pronouncement of death" was a material allegation in the indictment.

At the hearing on the motion for new trial, trial counsel testified that his sole defense strategy was to argue that Fortner had not billed for pronouncing anyone’s death, and pronouncing a death was different from conducting a death investigation. He stated that he argued in his motion for directed verdict that this was a fatal variance between the evidence adduced at trial and the indictment.

The trial court denied the motion for new trial, as amended, finding there was no fatal variance because Fortner was on notice of the charges against him and was able to argue his defense, and that any error in admitting exhibit 38 was harmless. Fortner now appeals.

1. Fortner first argues that the trial court erred in denying his motion for directed verdict of acquittal because there was a fatal variance between the evidence at trial and the indictment. He contends that the indictment charged him with committing the crimes by seeking reimbursement for "pronouncement of death," and that this language was not surplusage. We are not persuaded.

The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. A motion for a directed verdict in a criminal case should only be granted when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. Moreover, on appeal the evidence must be viewed in the light most favorable to the verdict, [Fortner] no longer enjoys the presumption of innocence, and the appellate court determines the sufficiency, not the weight of the evidence, and does not judge the credibility of the witnesses. Further, we do not speculate which evidence the jury chose to believe or disbelieve.

(Citation, punctuation and emphasis omitted.) Pippins v. State , 263 Ga. App. 453, 453-454 (1), 588 S.E.2d 278 (2003).

To convict Fortner of violating his oath of office, the State had to prove that he willfully and intentionally violated his oath by requesting and receiving payment for services for which he was not entitled to be paid. OCGA § 16-10-1. In regard to this offense, the State charged Fortner with receiving payment for "pronouncing the death of" patients "when said services as coroner did not merit payment in this circumstance."

To convict Fortner of theft by deception, the State was required to prove that Fortner "obtain[ed] property by any deceitful means or artful practice with the intention of depriving the owner of the property." OCGA § 16-8-3 (a). As charged in the indictment, the State alleged that Fortner "intentionally created an impression of fact which was false, that he was entitled to payment for pronouncing [patients] dead when he was not entitled to said payment." See OCGA § 16-8-3 (b) (1).

"We review the sufficiency of an indictment to determine whether a defendant was misled to his prejudice." (Citation and punctuation omitted.) Brown v. State , 302 Ga. App. 641, 644 (2), 692 S.E.2d 9 (2010).

As we have explained,

[w]hile an unnecessary description of an unnecessary fact averred in an indictment need not be proved, in criminal law even an unnecessarily minute description of a necessary fact must be proved as charged. If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance. No averment in an indictment can be rejected as surplusage which is descriptive either of the offense or of the manner in which it was committed. All such averments must be proved as laid, or the failure to prove the same as laid will amount to a variance. To permit the prosecution to prove that a crime was committed in a wholly different manner than that specifically alleged in the indictment would subject the accused to unfair surprise at trial and constitute a fatal variance.

(Citation omitted.) Ford-Calhoun v. State , 327 Ga. App. 835, 836 (1), 761 S.E.2d 388 (2014). Nevertheless,

[o]ur courts no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial

...